“Kolea” raises some excellent questions in a long comment posted here yesterday concerning the manuscript of Down & Dirty”, the recently rediscovered 1993 collection of items from my Hawaii Monitor newsletter. You can click on that link and scroll down to read Kolea’s comment.

Kolea wonders “if the older, wiser Ian Lind” has any reservations about “the writings of the younger, more self-certain author of the Hawaii Monitor?”

The brief answer is probably “yes”. However, I can look back and excuse my lack of subtlety as a reasonable reaction to situations which much displayed much more blatant conflicts and evasions of law and policy. Many of the situations I wrote about then would not be tolerated today, and in fact later led to criminal prosecutions and convictions, ranging from the conviction of former House Speaker Danny Kihano for misusing campaign funds and then pressuring staff to lie to federal investigators, to the convictions of corporate officials for using what had until then been accepted techniques for making excess contributions to favored candidates.

Some of Kolea’s questions go to specific situations, such as funds channeled to the Maritime Center from monies earmarked for Native Hawaiian culture and arts programs.

As I read your account of funds going to the Maritime Center, I find myself saying, “So?” Inouye directed funds to keep it afloat and to help fund the Hokulea. Again, so? I don’t see the problem.

Here we’re in the murky world of congressional earmarks and internal politics. The issue, as reflected in minutes, was that certain moneys were earmarked for Native Hawaiian programs and defended on the basis of needs of Native Hawaiians. Then, for reasons of political expediency, some of those funds were directed to a program that had only tangential connections to Native Hawaiian culture and arts, and bypassed the decision-making mechanisms set up to allocate funds to competing groups within the Native Hawaiian community.

As a matter of real politics, if the ends necessarily justify the means, then perhaps its correct to react with a simple “so what?”. As the insiders said at the time, they had no choice in the matter. I have trouble agreeing that it’s just that simple and that other concerns are properly dismissed, but it’s certainly useful to air the issue.

Kolea also confronts the question of appropriate standards. It’s a thorny issue.

“In a number of places, you raise a concern about “the appearance” of impropriety, of conflict of interest, of corruption. I have trouble with “appearance of impropriety” as a reasonable standard.”

Here it’s important to ask the purpose of the “reasonable standard”.

While an “appearance of impropriety” may not be a proper standard to prove criminal liability, for example, it seems to me unreasonable to expect the public to tolerate all manner of apparent conflicts and incestuous political relationships unless and until sufficient evidence has been gathered to demonstrate that the conflicts have resulted in illegalities.

In public life, appearances are important and need to be maintained.

Let me back up. Hawaii’s State Constitution (Article XIV) establishes the foundation for a code of ethics.

The people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct and that these standards come from the personal integrity of each individual in government.

It then goes on to specify that these ethical standards are to be embodied in codes of ethics and standards of conduct administered by state and county ethics commissions, each code to include at least certain specified provisions.

In the area of public service and ethics, the “appearance of impropriety” standard is not uncommon.

For example, the very first canon in Hawaii’s Code of Judicial Conduct applies exactly this standard:

A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.

The code later defines the term:

“Appearance of impropriety” means conduct that reasonable minds, with knowledge of all the relevant circumstances, would perceive as materially impairing the judge’s independence, integrity, impartiality, temperament, or fitness to fulfill the duties of judicial office.

And what is at stake, according to the accompanying commentary, is public confidence: “Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety.”

The same holds true in the broader world of public life. While apparent conflicts may not signal that illegal things are actually going on, they do create conditions enable actual conflicts and necessarily erode the public’s confidence in the inner workings of politics.

One problem is that actual investigations of apparent conflicts are rare events, and even then can only find an actual conflict of interest after the fact, when an existing relationship has already been allowed to improperly impact public decision making.

The statutory code of ethics, found in Chapter 84 HRS, explicitly adopts something akin to the “appearance of impropriety” standard only in its gifts section.

§84-11 Gifts. No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part. [emphasis added]

However, the State Ethics Commission often warns public officials and employees that they should avoid putting themselves in situations involving appearances of conflicts in order to avoid ethical issues. The commission has also warned that the public’s perception can be as damaging to public officials as any explicit violation of the legal standards. In this sense, the commission is well aware that while explicit legal standards must be somewhat tightly drawn to protect individual rights, the realm of political perception can be far less forgiving.

Here’s an instructive advisory opinion from the Honolulu Ethics Commission which carefully examines the facts of a particular situation and concludes that while no actual conflict can be proven (“insufficient evidence”), action should have been taken to avoid “even the appearance of impropriety”.

Kolea finally asks:

So when everyone is related or otherwise allied, how do we go beyond mere “appearance” and develop more accurate criteria for measuring impropriety? That’s my dilemma.

I’ve often said that there’s a very fine line between community and corruption.

The problem is that while it may feel like “everyone is related or otherwise allied”, that’s usually the view only from inside a select group or community. Small towns and small political communities can be supportive, but they can also quickly become oppressive. And in a society as diverse and complex as Hawaii has become, that sense that “everyone is related” is really a false view of the world that masks special treatment given to and too often expected by insiders.

In any case, thanks to Kolea for setting the stage for an important discussion.